State v. Parkinson

• Decision Date: 03 January 1996
• Docket Number: No. 20880,20880
• Citation: 128 Idaho 29,909 P.2d 647
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Kelly PARKINSON, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 647

909 P.2d 647

128 Idaho 29

STATE of Idaho, Plaintiff-Respondent, v. Kelly PARKINSON, Defendant-Appellant.

No. 20880.

Court of Appeals of Idaho.

Jan. 3, 1996.

[128 Idaho 31] W. Brent Eames, Madison County Public Defender, Rexburg, for appellant.

Alan G. Lance, Attorney General; L. Lamont Anderson, Deputy Attorney General (argued), Boise, for respondent.

LANSING, Judge.

Kelly Parkinson was convicted for sexual abuse of a child under sixteen, I.C. § 18-1506. By this appeal we are asked to determine whether the district court erred in excluding testimony by defense witnesses that

[128 Idaho 32] Parkinson's characteristics do not match sex offender profiles and testimony regarding the incidence of false reporting of sexual abuse. Parkinson also challenges the court's admission of certain hearsay testimony and the victim's testimony that Parkinson had beaten his wife. We also consider Parkinson's contention that the State's evidence was insufficient to support the jury's guilty verdict.

I. FACTS AND PROCEEDINGS

According to the testimony at Parkinson's trial, the following events gave rise to the charge that he sexually abused a minor under the age of sixteen. On March 28, 1992, Parkinson's thirteen-year-old niece, E.F., and her brother, B.F., who was then age twelve, spent the night at Parkinson's home. E.F., her brother and her cousin, were sleeping in a downstairs bedroom. E.F. slept in a bed while her brother and cousin slept on the floor nearby. E.F. testified that there were three incidents of abuse during the night. During the first occurrence, she awoke to find Parkinson rubbing her buttocks. She jumped up and Parkinson left the room. Approximately two hours later, E.F. was awakened by Parkinson rubbing her breast and pulling at her nightgown. She rolled over in her bed, and Parkinson again departed. At about 6:30 a.m., E.F. was disturbed a third time by Parkinson, who was then rubbing her buttocks. Parkinson left after E.F.'s brother began to stir. E.F. woke her brother and, while crying, told him about the incidents that had occurred during the night. On March 31, 1992, E.F. told her mother about Parkinson's actions, and the police were contacted soon thereafter. Parkinson was charged with violation of I.C. § 18-1506, and was found guilty following a jury trial.

On appeal, Parkinson presents a number of issues for our consideration. He asserts that the court erred in several evidentiary rulings including: (1) the exclusion of expert testimony of a psychologist and of a former FBI investigator that Parkinson did not fit the profile of a sex offender; (2) exclusion of the psychologist's testimony about the frequency with which children's accusations of sexual abuse are found to be false; (3) the admission of B.F.'s testimony about what E.F. told him regarding the abuse; (4) the admission of E.F.'s testimony to the effect that she did not like Parkinson because she believed he had beaten her aunt; and (5) the admission of a Department of Health and Welfare sexual abuse investigative record. Finally, Parkinson alleges that insufficient evidence was presented at trial upon which a rational trier of fact could have found him guilty of sexual abuse of a child. We address each assignment of error in turn.

II. TESTIMONY REGARDING SEX OFFENDER PROFILES

Parkinson complains that the trial court erred when it excluded sex offender profile testimony offered through Marcel Chappuis, a psychologist, and Peter M. Welsh, a former Federal Bureau of Investigation agent with experience in the development of sex offender profiles for use by law enforcement personnel. Prior to trial, Parkinson filed a motion to allow Dr. Chappuis and Mr. Welsh to testify to their opinions that Parkinson did not fit the profile of a sexual offender. The district court denied Parkinson's motion, concluding that: (1) the profile evidence was offered to bolster Parkinson's credibility and was thus impermissible because veracity is not a "fact in issue" subject to expert opinion; (2) the evidence at issue would not "assist the trier of fact to understand the evidence"; and (3) the expert opinion evidence would constitute a direct comment on the guilt or innocence of Parkinson and replace, rather than aid, the jury's function.

At trial, however, Parkinson made offers of proof by questioning Dr. Chappuis and Mr. Welsh. By these offers of proof Parkinson sought to establish a foundation for the opinion testimony of both of these witnesses. The district court ruled that an adequate foundation had not been made for either Dr. Chappuis or Mr. Welsh to render opinions that Parkinson did not fit the profile of a sex offender, and also adhered to its earlier ruling that such opinion testimony based upon We note, as did the district court, that the introduction of expert testimony regarding whether a defendant fits an alleged "sexual offender profile" has been almost universally rejected in other jurisdictions. See United States v. Pierre, 812 F.2d 417 (8th Cir.1987); State v. Person, 20 Conn.App. 115, 564 A.2d 626 (1989), aff'd, 568 A.2d 796 (1990), cert. denied, 498 U.S. 1048, 111 S.Ct. 756, 112 L.Ed.2d 776 (1991); Gilstrap v. State, 215 Ga.App. 180, 450 S.E.2d 436 (1994); People v. Edwards, 224 Ill.App.3d 1017, 167 Ill.Dec. 54, 586 N.E.2d 1326 (1992); State v. Armstrong, 587 So.2d 168 (La.Ct.App.1991); Commonwealth v. Trowbridge, 36 Mass.App.Ct. 734, 636 N.E.2d 291 (1994) overruled on other grounds, Commonwealth v. Trowbridge, 419 Mass. 750, 647 N.E.2d 413 (1995); State v. Fitzgerald, 382 N.W.2d 892 (Minn.Ct.App.1986); State v. Elbert, 831 S.W.2d 646 (Mo.Ct.App.1992); People v. Berrios, 150 Misc.2d 229, 568 N.Y.S.2d 512 (N.Y.Sup.Ct.1991); State v. Gallup, 98 Or.App. 211, 779 P.2d 169 (1989); State v. Campbell, 904 S.W.2d 608 (Tenn.Crim.App.1995); Williams v. State, 649 S.W.2d 693 (Tex.Ct.App.1983); State v. Hulbert, 481 N.W.2d 329 (Iowa 1992); Pendleton v. Commonwealth, 685 S.W.2d 549 (Ky.1985); State v. Cavaliere, 140 N.H. 108, 663 A.2d 96 (1995). Various reasons have been given for rejection of this type of evidence, including that it has not gained general acceptance in the scientific community, that it invades the province of the jury and unfairly prejudices the prosecution, and that it does not assist the trier of fact to understand the evidence or to determine a fact in issue. ¹

[128 Idaho 33] profiles is inadmissible because it invades the province of the jury.

Parkinson contends, however, that the Idaho Supreme Court determined such profile evidence to be admissible in State v. Hester, 114 Idaho 688, 694, 760 P.2d 27, 33 (1988), where the Court stated, "If relevant, it is generally permissible for experts to testify regarding traits typically exhibited by child abusers." The question addressed in Hester was whether the trial court had erred in allowing the State to introduce expert testimony that the defendant exhibited character traits consistent with characteristics of known child abusers. The Court held that this expert testimony was inadmissible because I.R.E. 404 prohibits the admission of evidence of a person's character if offered during the State's case in chief to prove the accused's conduct on a specific occasion. Id. at 694, 760 P.2d at 33. Thus, the Hester case presented no issue as to the admissibility of sex offender profile evidence offered by the accused, and any statement in the Hester opinion suggesting that such evidence is admissible in circumstances where it is not prohibited by I.R.E. 404 appears to be dicta.

Resolution of the case before us does not require, however, that we determine the precedential value of this statement in Hester or that we announce any general rule regarding the admissibility of sex offenders' profiles when offered by a defendant. We conclude that even if such evidence is generally permissible, the district court correctly held that an inadequate foundation for the expert testimony was presented in Parkinson's case.

Whether a witness is sufficiently qualified as an expert is a matter largely within the sound discretion of the trial court. State v. Winn, 121 Idaho 850, 828 P.2d 879 (1992); State v. Crea, 119 Idaho 352, 355, 806 P.2d 445, 448 (1991). Similarly, the admissibility of expert opinion testimony is discretionary and will not be disturbed on appeal absent a showing of an abuse of discretion. Winn, 121 Idaho at 855, 828 P.2d at 884; Crea, 119 Idaho at 355, 806 P.2d at 448. Thus, it is not error for a trial court to exclude from evidence testimony dealing with a scientific theory for which an adequate foundation has not been laid. See Winn, 121 Idaho at 855-56, 828 P.2d at 884-85. Recent decisions of the Idaho Supreme Court establish that the admission of expert testimony regarding scientific evidence is governed by Idaho Rule of Evidence 702. State v. Gleason, 123 Idaho 62, 65, 844 P.2d 691, 694 (1992); State v. Rodgers, 119 Idaho 1047, 1049, 812 P.2d 1208, 1210 (1991). ² Rule 702 provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of opinion or otherwise."

Although our Supreme Court has held that this rule presents the appropriate test for measuring scientific reliability, that Court has not had occasion to articulate the inquiry envisioned by Rule 702. Therefore, for guidance we look to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), where the United States Supreme Court interpreted Federal Rule of Evidence 702, which is identical to I.R.E. 702. First, the Court held that the "general acceptance" test of Frye v. United States, 293 F. 1013 (D.C.Cir.1923), was superseded by the Federal Rules of Evidence, and thus general acceptance in the scientific community is not a necessary precondition...